Supreme Court to Hear Case on Foster Care and Gay Rights

The justices will consider whether a city may exclude a Catholic adoption agency from its foster care system because it refuses to work with gay couples.

The Supreme Court on Monday agreed to decide whether Philadelphia may exclude a Catholic agency that does not work with same-sex couples from the city’s foster-care system.Foster Care Gay

The city stopped placements with the agency, Catholic Social Services, after a 2018 article in The Philadelphia Inquirer described its policy against placing children with same-sex couples. The agency and several foster parents sued the city, saying the decision violated their First Amendment rights to religious freedom and free speech.

A unanimous three-judge panel of the United States Court of Appeals for the Third Circuit, in Philadelphia, ruled against the agency. The city was entitled to require compliance with its nondiscrimination policies, the count said.

Leslie Cooper, a lawyer with the American Civil Liberties Union, said the Supreme Court’s decision in the case would affect many families.

“This case could have profound consequences for the more than 400,000 children in foster care across the country,” she said. “We already have a severe shortage of foster families willing and able to open their hearts and homes to these children. Allowing foster care agencies to exclude qualified families based on religious requirements that have nothing to do with the ability to care for a child such as their sexual orientation or faith would make it even worse.”

In a Supreme Court brief, the agency agreed that the legal questions before the justices were enormously consequential.

“Here and in cities across the country, religious foster and adoption agencies have repeatedly been forced to close their doors, and many more are under threat,” the brief said. “These questions are unavoidable, they raise issues of great consequence for children and families nationwide, and the problem will only continue to grow until these questions are resolved by this court.”

The case, Fulton v. City of Philadelphia, No. 19-123, is the latest clash between anti-discrimination principles and claims of conscience. It is broadly similar to that of a Colorado baker who refused to create a wedding cake for a same-sex couple.

In 2018, the Supreme Court refused to decide the central issue in that case: whether businesses may claim exemptions from anti-discrimination laws on religious grounds. It ruled instead that the baker had been mistreated by members of the state’s civil rights commission who had expressed hostility toward religion.

The foster care agency relied on the decision, Masterpiece Cakeshop v. Colorado Civil Rights Commission, in arguing that it too had been subjected to hostility based on anti-religious prejudice. It added that its free-speech rights would be violated were it forced to certify that same-sex couples are fit to be foster parents.

The city responded that the agency was not entitled to rewrite government contracts to eliminate anti-discrimination clauses.

“It has never been the case that religious entities, or entities with deeply held secular views, are constitutionally entitled to enter into government contracts and then defy any terms to which they object,” the city’s brief said. If the agency’s “sweeping constitutional claims were accepted,” the brief said, “they would cause mayhem in government contracting.”

NYTimes.com, By Adam Liptak, February 24, 2020

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Israeli Supreme Court rules same-sex couples be given access to surrogacy

In an apparent rebuke to government, the Israeli Supreme Court justices say current law that excludes LGBT couples, harms ‘right to equality’ and gives the state one year to amend the existing legislation; LGBT organizations laud ‘historic decision’

In a unanimous verdict, the Israeli Supreme Court on Thursday ruled that same-sex couples and single men be given access to domestic surrogacy services.Israel Supreme Court

The five-justice panel declared that the current arrangements within the Embryo Carrying Agreements Law disproportionately “harms the right to equality” and the right of parenthood of these groups, and are therefore illegal.
Following a 4 to 1 vote, the court gave the state a maximum of 12 months to amend the current legislation.
Justice Uzi Vogelman wrote in his verdict the current Surrogacy Law inherently discriminates not only against LGBT community but against the concept of fatherhood as well.
“The current arrangement echoes the deep social construct that motherhood is preferable to fatherhood, and that a family made up of a male and female or only a female is much more ‘preferred,’ ‘deserving’ and ‘accepted’ than the more complicated forms [of family],” he wrote.
“This is a harmful message on the part of the administration, disregarding the basic duty of the state to respect all forms of life and all family units.”
 
ynetnews.com, by Yael Friedson, Amir Alon February 27, 2020
 
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South Dakota Senate panel narrowly defeats commercial surrogacy ban

A South Dakota Senate committee on Wednesday narrowly rejected a measure that would have criminalized commercial surrogate pregnancy agents, making it unlikely for such a ban to win approval this year.

The South Dakota Senate Health and Human Services voted down the surrogacy ban bill 4-3 after a debate pitting some families who have used surrogates for pregnancy against critics who argue the practice exploits and endangers women and babies.South Dakota

Sen. Arthur Rusch, a Republican from Vermillion, cast the deciding vote against the legislation after initially moving to approve it and send it on to the full Senate. He called it “one of the most difficult decisions that I’ve made.”

The House had previously passed the bill, which deals with the practice of having a woman being impregnated with an embryo from another couple.

The proposal would have made acting as a surrogacy agent a misdemeanor punishable by up to a year in jail. It would have made South Dakota one of a handful of states to criminalize the practice. Lawmakers said they would be more open to regulating surrogacy rather than passing an outright ban.

Rep. Jon Hansen, the Dell Rapids Republican who introduced the bill, argued that commercial surrogacy makes women and babies vulnerable to commercial contracts.

“Human beings are not property to be bartered for,” he said.

During testimony Wednesday, supporters of the commercial ban pointed to situations in other states where commercial surrogates have had to go to court over disputes arising from the contracts. They argued that commercial surrogacy targets women who are poor and from vulnerable communities.

Jennifer Lahl, an activist against commercial surrogacy from California, said surrogate pregnancies have higher health risks than normal pregnancies and pointed to the deaths of several women who died from complications during a surrogate pregnancy.

The bill also had the support of anti-abortion groups, an influential force in the conservative state. Many surrogacy contracts address “fetal reduction,” in which one fetus may be aborted if a woman has twins or triplets. They argued that the contracts could be used to pressure women into getting an abortion.

Women from a group of families that have had children through surrogacy opposed the bill. They have been frequent visitors to the Capitol as the bill progressed through the Legislature, making their case to lawmakers.

They argued that the bill is based on worst-case scenarios, mostly from other states, and that the commercial contracts protect both the women acting as surrogates and the intended parents.

TheHour.com by Stephen Groves, February 26, 2020

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War Of The New York Surrogacy Bills Erupts

New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy.

Things just took a bizarre turn in the New York legislature when it comes to surrogacy. Last week, New York State Senator Liz Kruger (SD-28) introduced S7717. That’s a new bill to legalize compensated surrogacy in New York. Great, right? Well, there’s already a different bill that’s both much further along and also, like, way better than S7717. So what gives?New York surrogacy

As astute readers know, New York is lagging behind the rest of the country as one of the few remaining jurisdictions in the United States that does not permit compensated surrogacy. And while a handful of jurisdictions once also had this legal prohibition, most have reversed course. Fortunately, New York has been looking poised to do the same with the smart, well-drafted Child-Parent Security Act. However, that’s a separate bill — and quite different from S7717.

What’s going on?

Last year, the Child Parent Security Act (CPSA) came very close to passing. But then it didn’t. Instead, it fell victim to the legislative sausage-making process.

After passing the Senate, and having the full and vocal support of Gov. Andrew Cuomo, it was never brought up for a vote on the Assembly floor. So eventually, it died at the end of the 2019 legislative session. It didn’t help that at the last minute, noted feminist icon Gloria Steinem, published an incendiary op-ed against surrogacy.

 

gestational carriersSo incendiary that some people had to do some real soul searching as to whether we were still, in fact, feminists, while Steinem argued that permitting compensated surrogacy was exploitative of women. It was sort of surreal to hear Steinem on the side of having the government tell women what they can and can’t do with their bodies.

However, after all that, this should be the CPSA’s year. Except now comes along S7717, which looks like an attempt to muddy the waters.

The CPSA takes the approach of following the generally accepted standards and best practices concerning surrogacy arrangements, including those recommended by the American Society for Reproductive Medicine (ASRM); S7717, in contrast, takes a very different approach.

To give it some credit, it does seem to provide a clearer path for compensation for “genetic surrogacy” –- where the surrogate is genetically related to the child. However, most surrogacy in the United States is “gestational surrogacy” –- where the surrogate is not genetically related to the child. She is, instead, providing a way to help intended parents, who could not have a genetic child otherwise, bring their child to birth. Here especially, S7717 takes a new and strange direction.

  • Everyone Must Live In New York. S7717 requires all parties to be either a United States citizen or a legal permanent resident and to be residents of New York for the past 12 months. There is an exception if the parties are “immediate” family and there is no compensation. But that’s a very narrow band. Penalizing and disqualifying someone for living across state lines or being a second cousin versus an “immediate” family member is a harsh line to draw. 
  • Random Restrictive Medical Requirements. If that weren’t enough, S7717 requires that a woman wishing to be a surrogate under the proposed law *must* be under 35 years old, and cannot have more than three births. It’s not exactly clear where these numbers came from though, since the ASRM guidelines provide that a woman can be a surrogate up to the age of 45 (ten more years!) and can have five prior births.
  • Impossible(?) Financial Requirements. The bill also requires what would often be impossible requirements. The intended parents would be required to have a life insurance policy in place for the surrogate for a minimum of $750,000, as well as a short-term and long-term disability policy. While maybe obtainable in some cases, and definitely good things to have in place in a perfect world, sometimes it can be very difficult to find such policies. For instance, some disability policies are not readily available to anyone if not provided by an employer, or require at least a year of being in place prior to eligibility for the benefits. So if no policy is available, it’s another no go.
  • Surrogate Can Keep The Child?! OK, the restrictions described above aren’t great. But probably way worse is the bill language providing that the surrogate is permitted to terminate the agreement at *any* time. And that specifically includes any time during the pregnancy. Even though the intended parents would be required to be financially responsible for the child at all times, a surrogate could decide to be a parent to the child.

Consistent with that madness, S7717 provides that hopeful intended parents can only be judicially recognized as the sole legal parents of the child after the surrogate submits a written declaration — no sooner than eight days following the birth of the child — stating that she is voluntarily consenting to disclaim and renounce her parental rights. But until such a waiver is submitted, the surrogate retains decision-making responsibility for the child (but still not financial responsibility). Whoa. That does not sound right.

AboveTheLaw.com by Ellen Trachman, February 19, 2020

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Commercial Surrogacy – a Complicated Legal Picture

Commercial Surrogacy’s Complicated Legal Picture

After trying to conceive through nine cycles of IVF, unsuccessfully, Alexis Cirel’s doctor suggested she and her husband take a different route: a gestational surrogate and commercial surrogacy.commercial surrogacy

“It was a hard decision and it took months of introspection,” says Cirel, an attorney in New York City. Ultimately, she agreed with her doctor. But surrogacy wasn’t legal in her home state, and she worried about the risk that her “biological child would not be my legal child” under state law.

New York is currently one of three states (along with Louisiana and Michigan) that don’t allow surrogacy contracts (though the remaining states vary greatly in their regulation of surrogacy) but may soon join the majority, with legislation on the table to make paid (aka commercial) surrogacy legal.

In the absence of a national policy, state legality issues date back to 1984, when a couple put an ad in the newspaper seeking a surrogate. Mary Beth Whitehead, of New Jersey, responded, and gave birth to Baby M. But everything soured when she wanted to keep the baby, which was conceived with her own egg. The New Jersey Supreme Court found that the payment to Whitehead was illegal, but ruled against her on the issue of custody: Baby M. went to the intended parents, though Whitehead received parental rights.

After the debacle, New York criminalized gestational surrogacy by fining parents and anyone who assists them, says Anthony Brown, New York-based founder of Time For Families Law, and the founding chairman of Men Having Babies, a nonprofit organization that educates gay men about surrogacy. The law was created to address traditional surrogacy (fertilizing the surrogate’s egg), but was extended to prohibit gestational surrogacy, where the child has no genetic relationship with the surrogate, rendering any contracts for “altruistic” surrogacy void and all commercial surrogacy contracts illegal.

Many people think it’s time to revisit the issue.

New York Gov. Andrew Cuomo recently launched a campaign to legalize gestational surrogacy, after a 2019 effort failed, and he has support from families, attorneys, LGBTQ rights groups, and even celebrities (Bravo’s Andy Cohen was present for the campaign announcement).

“This antiquated law is repugnant to our values, and we must repeal it once and for all and enact the nation’s strongest protections for surrogates and parents choosing to take part in the surrogacy process,” Cuomo said in a statement.

The new legislation would create protections for surrogates so they could make their own health care decisions, including whether to terminate a pregnancy; would create legal protections for parents of children conceived by reproductive technologies such as artificial insemination and egg donation; and would eliminate barriers to second-parent adoption (a single visit to court to recognize legal parenthood while the child is in utero would suffice).

Many New Yorkers use surrogates but travel to other states to use them. Repealing the bill would simply make it easier and safer for everyone involved, Cirel says. She switched from her corporate law role to become a family law and matrimonial attorney after going through the surrogacy process, and she is a member of New York’s Love Makes a Family Council, created in conjunction with the proposed law.

Romper.com, February 19, 2020 by Danielle Braff

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Fertility Fraud: The U.S. Is Experiencing An Explosion Of Legislation. And That’s A Good Thing

More and more cases of fertility fraud have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm, a form of fertility fraud, to “treat” their unknowing patients.fertility fraud

Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.

The Justice System Has Been Failing Us

A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort – fertility fraud? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.

Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases of fertility fraud in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.

Time To Change The Law

Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.

Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.

The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.

AboveTheLaw.com, by Ellen Trachman, February 12, 2020

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Paying gestational carriers should be legal in all states

Every year, hundreds of thousands of babies are born in the U.S. using assisted reproductive technologies, including the use of gestational carriers, a multibillion-dollar industry that is controversial and largely unregulated.

One of the controversies involves the use of paid gestational carriers, women who agree to carry a fertilized embryo, created from another woman’s egg, give birth, and give the baby to its parents. This is different from tradition (or genetic) surrogates, who provide both their own eggs and their own wombs. Gestational surrogacy now constitutes 95% of all surrogacy in the U.S.gestational carriers

State laws about arrangements for gestational carriers vary widely and are in flux. This kind of surrogacy is currently allowed in 10 states; prohibited but with various caveats and additional legal proceedings in 30; practiced with potential legal obstacles and inconsistent outcomes in five; practiced but with legally unenforceable contracts in two and prohibited in three. Several of the 40 states with real or potential legal hurtles require that couples be married and heterosexual, or allow surrogates to choose at any point to keep the baby.

Commercial surrogacy first gained wide attention in the 1980s through the Baby M case. Elizabeth Stern had multiple sclerosis and feared that pregnancy would worsen it. Through a newspaper ad, she and her husband connected with Mary Beth Whitehead, who agreed to carry a fetus for them as a traditional surrogate, providing both an egg and a womb. But after giving birth, Whitehead decided to keep the child. A New Jersey court awarded the Sterns custody of Baby M, but banned all such future surrogacy contracts.

Since then, practices have changed and the use of gestational carriers has grown dramatically. In many states, however, prospective parents need to travel to other states, like California, to avoid legal obstacles. Some seek surrogates in the developing world, which has its own set of problems.

Competing proposed bills in New York state highlight the conflicts involved in gestational surrogacy.

In June 2019, the New York state Senate voted to legalize gestational surrogacy. The pushback was swift and strong. Noted feminist Gloria Steinem argued strongly against the proposal, raising concerns that poorer women of color would disproportionately serve as gestational carriers. She also pointed out that the bill would require surrogates to be state residents for only 90 days, which could prompt human traffickers to bring women to New York to serve as surrogates. The State Assembly then rejected the proposal. Lawmakers are now considering at least two different revised versions of the bill — one from Gov. Andrew Cuomo and one from the bill’s original sponsor — that address these criticisms.

I believe the state should legalize gestational surrogacy, providing it includes protections to avoid the problems Steinem highlighted.

In the debates in New York, as well as those in other states, both sides have been arguing in the relative absence of data, without acknowledging this deficit. In fact, the limited data available so far do not suggest that women become gestational carriers because of financial distress, nor do the demographics reflect racial disparities.

StatNews.com, by Robert Klitzman, February 12, 2020

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Putin says he won’t allow for LGBTQ families or marriages in Russia

Putin told reporters that he’s considering a constitutional amendment that would ensure that all parents of children “will be dad and mum.”

Russia’s President, Vladimir Putin, said to a pool of reporters on Monday that he will not allow same-sex adoption or support marriage equality  “as long as [he’s] president” – currently set to be at least to 2024.russia gay

The comments were made at a press conference regarding a state-approved commission that will consider potential changes to the Russian constitution. Putin is supposedly trying to shape Russia’s laws and constitutionality in a way that would allow him to maintain power after his current term ends.

A reporter asked if a proposal that would “add a line in the constitution defining marriage as a union between a man and a woman” would be considered. Putin replied, “We need only to think in what phrases and where to do this.”

While the question was about same-sex marriage, Putin’s response focused on ruling on the potential of LGBTQ families being legal parents.

“As far as ‘parent number 1’ and ‘parent number 2’ goes, I’ve already spoken publicly about this and I’ll repeat it again,” Putin said, “as long as I’m president this will not happen. There will be dad and mum.”

French Senate passes bioethics law allowing lesbians to artificially procreate

The bill passed by the French Senate is watered down but still extremely transgressive.

The French Senate adopted the draft bioethics law currently under discussion in that body by a relatively small margin of 10 votes on Tuesday. One of its most spectacular elements, the legalization of access to artificially assisted procreation for single women, including those in lesbian relationships, was confirmed, as well as the widening of possibilities for research on human embryos. Other articles of the law were modified by the Senate, which canceled some of its more shocking propositions.French Senate

Although the higher chamber in France still has a right-of-center majority, the text, which remains deeply transgressive, obtained 153 votes in its favor, while 143 senators voted against and 45 abstained. The voting was not uniform right and left — 97 of the 144 “Les Républicains” mainstream right-wing senators rejected the law presented by Emmanuel Macron’s left-wing government, while 25 voted for the text, thus bearing responsibility for its adoption.

The presidential party “La République en marche” (LREM), created for the last presidential election and not very strong in the Senate, was itself divided: six of its 24 senators voted against the text.

Almost all the 348 senators were present, a sign that the revision of France’s bioethics laws is being taken seriously. The first such law was adopted in 1994 and was already transgressive because it legalized artificial procreation and embryo selection.

From the start, it was decided that the bioethics law would be revised every five years in order to take medical and scientific progress and new techniques into account. As a matter of fact, the laws were revised over larger intervals. Each time, new possibilities for embryo research, pre-implantation diagnosis, and other such transgressions were added.

The draft bioethics law now being discussed has been substantially amended by the Senate and will therefore return before the National Assembly, probably in April. Laws are adopted definitively without a second reading in France only when adopted by both chambers in exactly the same terms.

Lifestienews.com, by Jeanne Smits, February 7, 2020

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Fresh Eggs For IVF Offer Slightly Better Birth Outcomes

Using fresh donor eggs for in-vitro fertilization (IVF) provides a small but statistically significant advantage in birth outcomes compared to frozen donated eggs, research finds.

The national study in the journal Obstetrics & Gynecology was the largest head-to-head comparison of the two IVF approaches, measuring the likelihood of a good perinatal outcome, defined as a single baby without prematurity and with a healthy birth weight.fresh eggs

“Our study found that the odds of a good birth outcome were less with frozen than with fresh, but it was a small difference,” says lead author Jennifer L. Eaton, medical director of assisted reproductive technology and director of the Oocyte Donation Program at the Duke Fertility Center.

“From a clinical standpoint, given that frozen eggs have many benefits such as ease, cost, and speed, the decision to use fresh or frozen donor eggs should be made on an individual basis after consultation with a physician,” Eaton says.

Eaton and colleagues, including senior author Alex Polotsky of the University of Colorado Advanced Reproductive Medicine, studied three years of data from the Society for Assisted Reproductive Technology. Nearly 37,000 IVF attempts were analyzed, including 8,381 (22.7%) that used frozen eggs and 28,544 (77.3%) using fresh.

Controlling for factors such as the quality of fertilized eggs and the age of both mother and donor, the researchers found that fresh eggs resulted in a good perinatal outcome in 24% of fertility attempts compared to 22% of the attempts with frozen eggs. Implantation, clinical pregnancy, and live birth rates were all significantly higher among the women using fresh eggs vs. frozen.

“As IVF with donor oocytes has become standard treatment for women with decreased egg supply or advanced reproductive age, there has been an increased demand for donor oocytes, making frozen eggs an attractive option,” Eaton says. “In general, IVF with frozen donor eggs is cheaper and faster than with fresh donor eggs.

Fututiry.org by Sarah Avery-Duke, February 7, 2020

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